How a spy probe wound up as a child pornography prosecution

A Boeing company manager convicted of child pornography charges in December says he has a right to know what arguments the government used to obtain the warrant from the Foreign Intelligence Surveillance Court. FBI agents investigating a potential data leak at Boeing obtained a secret search warrant two years ago to search the home computers of Keith Gartenlaub, for evidence they hoped would connect him to Chinese economic espionage

Now, the Los Angeles case is testing a defendant’s ability to access information about himself presented to the nation’s secretive intelligence court, which issued the warrant that let agents scour his computers. At issue is how the government uses evidence derived through the Foreign Intelligence Surveillance Court and under what circumstances that information should be seen by defendants, particularly when it’s repurposed for a routine criminal prosecution that has nothing to do with national security.

Gartenlaub and his lawyers say they have a right to know the government’s arguments that were used to obtain the warrant, and fight them. “You can’t base a search on lies,” the 47-year-old said in an interview with The Associated Press. He’s seeking a new trial as he awaits his April 18 sentencing, saying there’s no evidence he was aware of the child pornography or had ever accessed the images.

The Justice Department noted that the judge, Christina Snyder, already ruled that the FISA warrant was lawfully issued and that the evidence was gathered properly. “When law enforcement lawfully obtains evidence of a serious crime, in this case a crime against children, we will pursue further investigation of that crime,” the department said in a statement.

The FBI interviewed Gartenlaub in 2013 after a Wired.com article revealed a resemblance between a new Chinese aircraft, the Xian Y-20, and the Boeing C-17, a military cargo plane, and suggested someone within Boeing may have been responsible.

An FBI affidavit described Gartenlaub as the “one engineer” who had access to C-17 data, intimate knowledge of Boeing’s computer systems and family ties to China. His wife is from China with a family described as “well connected.” He traveled regularly to the country and expressed frustration that Boeing sought to limit his excursions there over security concerns, the affidavit says. The FBI also focused on dozens of deposits to the couple’s bank account that it deemed suspicious — transactions Gartenlaub says were legitimate.

A recent court filing suggested a connection to the prosecution of Su Bin, a Chinese businessman who pleaded guilty last month for his role in a Boeing hack that led to the theft of C-17 secrets.

Gartenlaub, for his part, maintains he wasn’t working on the C-17 program when the Su Bin theft is thought to have occurred and didn’t have access to the data in the first place — though, he says, thousands of other Boeing employees did. He says the FBI misstated his position at Boeing, making it sound like he had broader access than he actually had. The FBI accessed his computers early in 2014 after obtaining the FISA warrant and arrested him months later on pornography charges.

In its search the FBI says it found videos of prepubescent girls on multiple hard drives, and evidence that Gartenlaub maintained a “carefully curated and organized collection” that was copied multiple times. But Jeff Fischbach, a forensic examiner who reviewed the evidence for the defense, said the images were intermingled in extensive folders with files representing other computer users, raising the possibility someone else was responsible for the pornography. He said there was no proof the images were ever opened or accessed in the years since they’d been downloaded and placed onto his computer.